COORDINATING INDEMNITY BENEFITS WITHCONTINUED SALARY UNDER THE EDUCATION CODE
By
Susan L. England
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| Hypothetical 4: |
| Eugene, a part time teacher, earns $1000.00 a month, an average weekly wage of $230.76). Due to an industrial injury in 2004, Eugene exhausts all of the full salary continuation benefits to which he is entitled and is now being paid fifty percent of his salary or $500.00 per month, an average weekly wage of $115.38. Based on his average weekly wage of $230.76, Eugene would be entitled to temporary total disability indemnity at the weekly rate of $153.85. Since his salary continuation is less than the rate to which Eugene is entitled for temporary disability, and by analogy to the Hayes case, he is owed the difference between his salary and his temporary disability rate. In this case $115.38 will be paid to the district and $38.47 paid directly to Eugene from the workers’ compensation carrier or the third party administrator. |
| Hypothetical 5: |
Utilizing the example in Hypothetical 4, Eugene is able to return to work for the district but only for half the hours he typically works. The district pays Eugene $500.00 a month, an average weekly wage of $115.38. Eugene has suffered a compensable wage loss of $500.00 a month for which he is entitled to temporary partial disability at the rate of $76.92 per week in addition to the salary he receives for modified work. Note: If Eugene had been making $2,000.00 a month in his job with the district, the modified work would pay him $1,000.00 salary. Note: Even though there is an actual wage loss of $1,000.00, it is only a compensable wage loss of $92.00 based on a maximum wage for temporary disability of $1,092.00 for dates of injury occurring in 2004. Hence his partial temporary disability rate would be two-thirds of $92.00 per week or $61.33. |
| Hypothetical 6: |
Griff works as a full time teaching assistant earning a salary of $24,000.00 a year. He puts in about four hours a month overtime which grosses him an additional $81.82 per month. He also works most summers for an additional $3,500.00. Griff sustains an industrial accident which causes him total temporary disability for the period October 15, through January 31. The school district provides Griff with a continued salary payment of $2,400.00 per month while he is off work. Griff objects to this and wishes his salary continuation to reflect the overtime hours he averages. What is the school district’s liability for continued salary?
There are no cases directly on point for school district employees. However, in a similar situation involving continued salary under Labor Code Section 4850, the WCAB and the Court of Appeal found that a firefighter was not entitled to receive an increase in his full salary under Labor Code Section 4850 by reason of the overtime he worked. The injured worker established that he typically worked about 10 hours a month overtime. See Fenn v. WCAB, (2003), 107 Cal.App.4th, 1252, 68 Cal.Comp. Cases 560.
Based on analogy to the Fenn case there is legal basis for the district to pay Griff his salary without consideration of the other earnings. |
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